State v. Owens , 2022 Ohio 2908 ( 2022 )

[Cite as State v. Owens, 2022-Ohio-2908.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-21-1148
Appellee Trial Court No. CR0201901763
v.
Ronald Louis Owens, Jr. DECISION AND JUDGMENT
Appellant Decided: August 19, 2022
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Grant C. Kozy, Assistant Prosecuting Attorney, for appellee.
Karin L. Coble, for appellant.
*****
MAYLE, J.
{¶ 1} Following a jury trial, defendant-appellant, Robert L. Owens, Jr., appeals the
August 3, 2021 judgment of the Lucas County Court of Common Pleas, convicting him
of failure to comply with an order or signal of police, and sentencing him to 30 months in
prison. For the following reasons, we affirm the trial court judgment.
I. Background
{¶ 2} On the night of March 6, 2019, Nicholas Bocik, a Toledo Police Detective,
was working the gang task force unit. He was driving a limited marked vehicle—a black
Ford Explorer—with lights on the exterior and push bars on it. At approximately 11:30
p.m., Bocik initiated a stop of Robert Owens’s vehicle after observing that the taillights
were not on. To do so, he turned on the lights in the limited marked vehicle, which
“activate all around” the vehicle.
{¶ 3} Bocik and his partner approached Owens’s car. Rather than the traditional
patrol uniform, Bocik was wearing a long-sleeved shirt with Toledo Police Department
patches on the arms and a vest carrier. He told Owens the reason for the stop, and
requested his driver’s license. Owens said that he did not have his license with him, so
Bocik asked for his name, birthdate, and social security number. Bocik and his partner
returned to their vehicle and entered the information into LEADS and NORIS. There
was “some type of issue with the identification” (in fact, the information Owens provided
was false), so Bocik returned to Owens’s vehicle to confirm that he had written down the
information correctly. Owens repeated the same information to Bocik, so Bocik assumed
that he incorrectly entered it and began walking back to his vehicle to try again. Owens
sped off.
{¶ 4} Bocik and his partner got back in their vehicle and pursued Owens. The
lights on the Explorer were already on and Bocik activated the siren. Owens ran red
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lights and stop signs while being chased. He sped through residential neighborhoods and
down roads where cars were parked along the sides of the streets. Eight to ten other
officers joined the pursuit in some capacity. Bocik’s unmarked vehicle was initially the
primary unit in the pursuit, but his vehicle experienced mechanical issues, requiring that
the pursuit be relinquished to another unit. The dashboard camera in Bocik’s vehicle
recorded the encounter with Owens and his portion of the pursuit.
{¶ 5} Detective Matthew Sulick was also working the gang task force on March 6,
2019. He and his partner, Detective Robert Bacone, joined in the pursuit of Owens’s
vehicle and took over as the primary unit after Bocik’s vehicle experienced mechanical
difficulties. Sulick had his lights and siren on, but Owens did not stop. Sulick observed
that Owens’s taillights were not on, he was speeding, he failed to stop at a stop sign, and
he did not use turn signals. At some point, another police cruiser picked up the pursuit
and Sulick turned off the lights and sirens. He and his partner remained close in case
they were needed as backup. The dashboard camera in Sulick’s vehicle recorded his
portion of the pursuit.
{¶ 6} Sergeant Samantha Snowberger was working as a K-9 handler on March 6,
2019, and was also involved in the pursuit in her Ford Crown Victoria cruiser. Her
vehicle became the primary unit for a period of time. Owens was driving through a
residential area near Toledo Hospital where cars were parked along the street and other
motorists were traveling; he was speeding and failed to stop at stop signs. Snowberger
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spent the majority of the time trying to catch up to Owens, but she was never able to pull
him over and was not present at his arrest. As a K-9 handler, Snowberger could not
remain the primary unit in pursuit, so she passed the pursuit off to another marked
vehicle. The dashboard camera in Snowberger’s cruiser recorded her portion of the
pursuit.
{¶ 7} Owens was charged with failure to comply with an order or signal of police,
a violation of R.C. 2921.331(B), (C)(1) and (C)(5)(a)(ii), a third-degree felony (Count 1);
obstructing official business, a violation of R.C. 2921.31(A) and (B), a second-degree
misdemeanor (Count 2); resisting arrest, a violation of R.C. 2921.33(A) and (D), a
second-degree misdemeanor (Count 3); and falsification, a violation of R.C.
2921.13(A)(3) and (F)(1), a first-degree misdemeanor (Count 4). The state dismissed
Counts 2, 3, and 4 before trial. Count 1 was tried to a jury. The jury convicted Owens of
Count 1, as well as the lesser included offense of failure to comply with an order or signal
of police, a violation of R.C. 2921.331(B),(C)(1), and (C)(1)(3), a first-degree
misdemeanor. The court sentenced Owens to 30 months in prison and three years’
discretionary postrelease control.
{¶ 8} Owens appealed. He assigns the following errors for our review:
Assignment of Error One: Defense counsel rendered ineffective
assistance in violation of the right to counsel given by the U.S Constitution
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and the Ohio Constitution, for failing to object to an officer’s testimony as
that officer was driving a “limited marked” car.
Assignment of Error Two: Mr. Owens’ conviction for third-degree
failure to comply is against the manifest weight of the evidence.
II. Law and Analysis
{¶ 9} In his first assignment of error, Owens argues that his trial counsel was
ineffective because he did not seek to exclude Bocik’s testimony as incompetent under
R.C. 4549.14 and Evid.R. 601(B)(4). He argues in his second assignment of error that
his conviction was against the manifest weight of the evidence because the state failed to
prove that he operated his vehicle in such a manner as to cause a substantial risk of
serious physical harm to persons or property, as required for a conviction under R.C.
2921.331(C)(5)(a)(ii). We address each of these assignments in turn.
A. Ineffective Assistance
{¶ 10} In his first assignment of error, Owens argues that trial counsel was
ineffective because he failed to object to Bocik’s testimony as incompetent by either
filing a motion to suppress or a motion in limine. He claims that because Bocik was
driving a limited marked vehicle, was not dressed in patrol uniform, and “was not in a car
compliant with R.C. 4549.13,” he was “incompetent to testify under R.C. 4549.14” and
Evid.R. 601(B)(4). Owens maintains that if such a motion had been filed, it likely would
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have been granted and there is a reasonable probability that the outcome of the
proceedings would have been different.
{¶ 11} The state responds that Bocik was not on duty for the primary purpose of
enforcing traffic laws—he was assigned to the gang task force. He was wearing a
uniform, but because of the cold weather, his uniform was covered, he clearly identified
himself as a police officer, and he activated his lights and siren in the limited marked
vehicle in order to effectuate the stop. Finally, the state insists that even if Bocik’s
testimony had been excluded, Officer Matthew Sulick or Sergeant Samantha Snowberger
would have been able to provide ample testimony to prove all the elements of the offense.
{¶ 12} Properly licensed Ohio lawyers are presumed competent. State v. Banks,
9th Dist. Lorain No. 01CA007958, 2002-Ohio-4858, ¶ 16. In order to prevail on a claim
of ineffective assistance of counsel, an appellant must show that counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial court cannot be
relied on as having produced a just result. State v. Shuttlesworth, 104 Ohio App.3d 281,
287, 661 N.E.2d 817 (7th Dist.1995). To establish ineffective assistance of counsel, an
appellant must show “(1) deficient performance of counsel, i.e., performance falling
below an objective standard of reasonable representation, and (2) prejudice, i.e., a
reasonable probability that, but for counsel’s errors, the proceeding’s result would have
been different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶
204, citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d
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674 (1984). “A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” State v. Sanders, 94 Ohio St.3d 150, 151, 761 N.E.2d 18 (2002).
{¶ 13} Owens claims that because the limited marked vehicle did not meet the
statutory requirements under R.C. 4549.13, Bocik was not competent to testify under
R.C. 4549.14 and Evid.R. 601(B)(4). Under R.C. 4549.13, a vehicle used by an officer,
“while said officer is on duty for the exclusive or main purpose of enforcing the motor
vehicle or traffic laws of this state,” and “provided the offense is punishable as a
misdemeanor,” must be “marked in some distinctive manner or color” and must be
“equipped with * * * at least one flashing, oscillating, or rotating colored light mounted
outside on top of the vehicle.” R.C. 4549.14 provides that if an officer “on duty
exclusively or for the main purpose of enforcing” misdemeanor motor vehicle or traffic
laws arrests or assists in the arrest of a person charged with violating those laws, he or
she “is incompetent to testify as a witness in any prosecution against such arrested person
if such officer at the time of the arrest was using a motor vehicle not marked in
accordance with [R.C.] 4549.13.” See also Evid.R. 601(C)(4).
{¶ 14} The main issue we must address here is whether Bocik was “on duty for the
exclusive or main purpose of enforcing the motor vehicle or traffic laws.” Owens first
describes Bocik’s testimony as “unclear” whether he was on duty for the exclusive or
main purpose of enforcing the motor vehicle or traffic laws, but then appears to concede
that Bocik “wasn’t on duty for the ‘exclusive’ purpose of making traffic stops.” He
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points to Bocik’s testimony that whether he was “looking to do traffic stops on a regular
basis” depended on whether he “see[s] something blatant”—like no taillights—or some
other safety concern.
{¶ 15} In State v. Huth, 24 Ohio St.3d 114, 493 N.E.2d 961 (1986), a sheriff's
deputy was working his assigned duty as a security guard at the airport. He was driving a
brown and white Chevrolet Suburban that was equipped with a siren, spotlight, and
police lights, but was not marked in a “distinctive manner or color” as required
under R.C. 4549.13 for vehicles used by traffic officers. While patrolling airport
property, the deputy saw the defendant run a stop sign. He attempted to pull her over, but
she fled before finally stopping. Before trial, the defendant sought to exclude his
testimony as incompetent under R.C. 4549.14 and former Evid.R. 601(C).
{¶ 16} The Ohio Supreme Court recognized that “R.C. 4549.14 was enacted to
provide uniformity in traffic control and to curb the ‘speed traps’ that were often operated
by municipal and township peace officers in unmarked cars.” Huth at 115-116. But, the
court emphasized, it was not intended to inhibit all police officers, except those primarily
on traffic duty, from arresting a person violating traffic or motor vehicle laws.” Id. at
116. Because the deputy’s vehicle was not marked in accordance with R.C. 4549.13, the
court explained that his competency to testify hinged upon whether he was “on duty for
the exclusive or main purpose of enforcing traffic laws.” Id. at 115, citing former Evid.R.
601(C).
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{¶ 17} The court interpreted “‘on duty exclusively or for the main purpose of
enforcing * * * [motor vehicle or traffic] laws’ in R.C. 4549.14 and similar language in
[former] Evid.R. 601(C) to refer to the officer’s main purpose for his whole period of
duty and not to his duty during the apprehension and arrest of the suspect.” Id. It
concluded that an officer’s decision to pursue and arrest a driver for a traffic offense
“[does] not change the ‘main purpose’ of his law enforcement duty as referred to in
R.C. 4549.14 and [former] Evid.R. 601(C).” Id. It found that the deputy’s main duty
was airport security—not traffic law enforcement—therefore, he was competent to
testify.
{¶ 18} Similarly, in City of Columbus v. Stump, 41 Ohio App.2d 81, 84-85, 322
N.E.2d 348 (10th Dist.1974), the court found that if an officer’s assignment included both
narcotics control efforts and “the patroling of the city for protection against the many
forms of law breaking,” then “it cannot be said that traffic control was the ‘main purpose’
of his assignment that night.” The court in Cleveland v. Watson, 8th Dist. Cuyahoga No.
82162, 2003-Ohio-5382, ¶ 12, citing Columbus v. Stump, 41 Ohio App.2d 81, 322 N.E.2d
348 (1974), also found that “[a] police officer who, while engaged in an assignment
unrelated to the enforcement of traffic laws, observes a violation of such laws and makes
an arrest therefor will not be precluded by R .C. 4549.14 and 4549.16 from testifying
with regard to such violation on the basis that he was wearing plain clothes and driving
an unmarked vehicle at the time of the arrest.”
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{¶ 19} Here, Bocik testified that he was working the gang task force unit. While
he testified that he could nevertheless make traffic stops when he saw a safety concern,
such as a vehicle driving without taillights, the main purpose for his whole period of duty
was not to enforce motor vehicle or traffic laws. Accordingly, we find that Bocik was
competent to testify, and counsel was not ineffective for failing to challenge his
competence. See also State v. Ward, 6th Dist. Erie No. E-79-27, 1979 WL 207342, *2
(Nov. 16, 1979) (“[E]ven though Sergeant Thompson was not in a marked vehicle, at the
time of the arrest he was not ‘* * * on duty for the exclusive or main purpose of
enforcing the motor vehicle or traffic laws of this state,’ (R.C. 4549.13). Therefore, [he]
was not precluded from testifying in this case [under] R.C. 4549.13 or R.C. 4549.14.”);
W. Unity v. Hill, 6th Dist. Williams No. WM-92-016, 1993 WL 306574, *5 (Jun. 30,
1993).
{¶ 20} In any event, we agree with the state that even if counsel would have
successfully challenged Bocik’s competence to testify, there was no reasonable
probability that the proceeding’s result would have been different. This is because both
Sulick and Snowberger testified and authenticated dash-cam videos showing that Owens
operated his vehicle “so as willfully to elude or flee a police officer after receiving a
visible or audible signal from a police officer to bring the person’s motor vehicle to a
stop,” and, in doing so, “caused a substantial risk of serious physical harm to persons or
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property.” R.C. 2921.331(B) and (C)(5)(a)(ii). We discuss this conclusion more fully in
addressing Owens’s second assignment of error.
{¶ 21} We find Owens’s first assignment of error not well-taken.
B. Manifest Weight
{¶ 22} In his second assignment of error, Owens argues that his conviction of
third-degree failure to comply was against the manifest weight of the evidence.
Specifically, he claims that the state failed to prove that he operated his vehicle in such a
manner as to cause a substantial risk of serious physical harm to persons or property as
required for a conviction under R.C. 2921.331(C)(5)(a)(ii). Owens insists that officers
testified that according to Toledo Police Department policies, a police chase should be
terminated if the officers believed that there was a danger or a substantial risk of harm.
He maintains that there was no evidence that any harm resulted to persons or property,
there were no adverse weather or pavement conditions, no witness observed any
pedestrians on the street, it was late and few cars were on the road, all of the vehicle’s
lights and signals were operational, and officers did not terminate the chase.
Accordingly, he claims, the state did not demonstrate a substantial risk of serious
physical harm to persons or property.
{¶ 23} The state responds that the weight of the evidence supports Owens’s
conviction. It argues that Owens led police on a chase for ten to 12 minutes at a high rate
of speed through residential neighborhoods and disregarded stop signs or traffic lights
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during the chase. The state claims that this conduct alone—described by the officers and
corroborated by video evidence—supported the element of “substantial risk of serious
physical harm to persons or property.”
{¶ 24} When reviewing a claim that a verdict is against the manifest weight of the
evidence, the appellate court must weigh the evidence and all reasonable inferences,
consider the credibility of witnesses, and determine whether the jury clearly lost its way
in resolving evidentiary conflicts so as to create such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered. State v. Thompkins, 78
Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We do not view the evidence in a light
most favorable to the state. “Instead, we sit as a ‘thirteenth juror’ and scrutinize ‘the
factfinder’s resolution of the conflicting testimony.’” State v. Robinson, 6th Dist. Lucas
No. L–10–1369, 2012–Ohio–6068, ¶ 15, citing Thompkins at 388. Reversal on manifest
weight grounds is reserved for “the exceptional case in which the evidence weighs
heavily against the conviction.” Thompkins at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 25} Although under a manifest-weight standard we consider the credibility of
witnesses, we must nonetheless extend special deference to the jury’s credibility
determinations given that it is the jury who has the benefit of seeing the witnesses testify,
observing their facial expressions and body language, hearing their voice inflections, and
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discerning qualities such as hesitancy, equivocation, and candor. State v. Fell, 6th Dist.
Lucas No. L-10-1162, 2012-Ohio-616, ¶ 14.
{¶ 26} Under R.C, 2921.331(B), “[n]o person shall operate a motor vehicle so as
willfully to elude or flee a police officer after receiving a visible or audible signal from a
police officer to bring the person's motor vehicle to a stop.” A violation of this statute
constitutes a first-degree misdemeanor unless (C)(4) or (5) applies. In this case, Owens
was convicted under (C)(5)(a)(ii). Under this section, a violation of R.C. 2921.331(B) is
a third-degree felony if “[t]he operation of the motor vehicle by the offender caused a
substantial risk of serious physical harm to persons or property.” “Substantial risk,” as
defined by R.C. 2901.01(A)(8), means “a strong possibility, as contrasted with a remote
or significant possibility, that a certain result may occur or that certain circumstances may
exist.”
{¶ 27} Ohio courts hold that “it is irrelevant to the enhancement whether appellant
actually caused or almost caused serious physical harm to persons or property.”
(Emphasis added.) State v. Garrard, 170 Ohio App.3d 487, 2007-Ohio-1244, 867
N.E.2d 887, ¶ 45 (10th Dist.). These courts emphasize that “the failure of Appellant to
engage in a ‘near collision’ speaks to nothing more than Appellant’s good luck and the
careful driving on the part of other motorists on the road” and “is irrelevant” to the level
of risk that the appellant’s conduct created. State v. Love, 9th Dist. Summit No. 21654,
2004-Ohio-1422, ¶ 19. See also State v. Hopkins, 5th Dist. Richland No. 09-CA-66,
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2010-Ohio-2441, ¶ 24 (explaining that mere fact that “[a]ppellant was fortunate enough
not to actually cause harm is of no consequence”).
{¶ 28} In Love, the Ninth District held that speeding through an area of businesses
near the University of Akron and residential areas, running stop signs and red lights, and
driving down the middle of the road with officers in pursuit with lights and sirens created
a substantial risk of harm to persons or property. It concluded that the jury did not lose
its way and create a manifest miscarriage of justice when it convicted appellant of the
enhancement provision of creating a substantial risk of serious physical harm to persons
or property under R.C. 2921.331(C)(5)(a)(ii). Id.{¶ 29} Similarly, in Garrard, the Tenth District found that appellant’s conviction
was not against the manifest weight of the evidence where the officer and detective
testified that after initiating their lights and sirens, they had to use a substantial amount of
acceleration during the pursuit, appellant was driving fast and probably double the speed
limit, and the pursuit covered areas containing both residences and businesses. The court
noted that in addition to the substantial risk of harm to any persons or property in the
areas through which he fled, the court may also consider that appellant created a
substantial risk of physical harm to the officers themselves.
{¶ 30} Here, Bocik testified that he observed Owens drive his vehicle—without
taillights—at a high rate of speed through residential neighborhoods and he failed to stop
at stop signs. He said that based on his experience, officers have been injured during
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pursuit, and this pursuit placed him at risk. Sulick testified that Owens did not have
taillights, was speeding, did not stop at a stop sign, and did not use turn signals. He said
that although he did not see any pedestrians, this was an area of town where people may
be out walking, and there was a substantial risk that someone could have been in a
crosswalk or walking down the sidewalk. He also testified that driving without taillights
may pose a danger to motorists. And Snowberger testified that Owens was driving
through a residential area in the vicinity of Toledo Hospital where cars were parked along
the street and other motorists were traveling; he was speeding and did not stop at stop
signs. The dash cam videos corroborate this testimony.1
{¶ 31} Much of Owens’s cross-examination of the officers focused on his claim
that traffic was light, none of the officers observed any pedestrians, there were no adverse
weather conditions, no person or property was in fact injured, his traffic offense was not
serious, and Toledo Police Department policy requires an officer to cease pursuit when
the level of danger outweighs the consequences of the suspect’s escape. His position
was—and is on appeal—that if police did not cease the chase, there must not have been a
substantial risk of serious injury to persons or property.
{¶ 32} First, the presence of pedestrians, heavy traffic, or adverse weather
conditions would have increased the risk—their absence did not eliminate the risk.
1
Even if Bocik’s testimony is ignored as incompetent, Sulick and Snowberger’s
testimony—along with their dash cam recordings—supports Owens’s conviction.
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Second, as already discussed, actual injury to persons or property is not required under
the statute. Third, while Owens was stopped for a taillight violation, he falsely identified
himself to police, therefore, not knowing his true identity, the officers could not assume
that the person fleeing them was responsible for only a minor traffic violation. Finally,
with respect to Owens’s position that if police did not cease the chase, there must not
have been a substantial risk of serious injury to persons or property, Owens points to no
evidence in the record showing that the pursuit—while sufficiently dangerous to create a
substantial risk of harm—was so dangerous that officers were required to abandon their
pursuit. Moreover, he cites no case law or other authority showing that these two
positions are so synonymous that one cannot exist without the other. And in any event,
Owens argued this position to the jury and the jury was obviously not persuaded by it.
We find that the jury did not clearly lose its way in rejecting Owens’s position. This is
not the exceptional case in which the evidence weighs heavily against the conviction.
{¶ 33} We find Owens’s second assignment of error not well-taken.
III. Conclusion
{¶ 34} We find Owens’s first assignment of error not well-taken. Officer Bocik
was assigned to the gang task force on the night of Owens’s offense and, therefore, was
not on duty “for the exclusive or main purpose of enforcing the motor vehicle or traffic
laws of this state.” He was, therefore, not incompetent to testify under R.C. 4549.14 and
Evid.R. 601(B)(4) despite driving a limited marked vehicle that was not compliant with
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R.C. 4549.13. Trial counsel was not ineffective for failing to move to exclude Bocik’s
testimony.
{¶ 35} We find Owens’s second assignment of error not well-taken. The
testimony and dash cam videos show that Owens sped through residential streets and
disregarded traffic signs and signals in an effort to elude police. His conduct caused a
substantial risk of serious harm to persons and property, and his conviction under R.C.
2921.331(C)(5)(a)(ii) was not against the manifest weight of the evidence.
{¶ 36} We affirm the August 3, 2021 judgment of the Lucas County Court of
Common Pleas. Owens is ordered to pay the costs of this appeal under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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